same gender as the complainant

Respondent can be of the same gender as the Complainant

In the case of Malabika Bhattacharjee vs. Internal Complaints Committee, Vivekananda College and Ors., Calcutta High Court, decided on 27th November, 2020, the question that arose for consideration was whether a complaint filed against a ‘Respondent’ who is of the same gender as the Complainant is valid. In this case, the gender of the complainant and the respondent was the same.

The petitioner argued that such a complaint is not valid. They relied on Vishaka & Ors. vs. State of Rajasthan & Ors., 1997(7) JT 384 and argued that keeping in mind this judgment, the question of ‘gender equality’ acquires primacy in deciding whether a complaint falls within the periphery of the 2013 Act. In the present case, since the gender of the complainant and the respondent is the same, the question of gender equality does not arise and therefore the question of the Act being invoked does not arise.

Respondents on the other hand relied on the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 arguing that the regulations hold a broad spectrum to include persons of the same gender to attract action in case of sexual harassment. They also argued that this, read with the definition of “respondent” in Section 2 (m) of the 2013 Act, which contemplates “a person” as a respondent, indicates clearly that same-gender allegations can also be entertained under the 2013 Act.

The Court held that:

  1. A cursory glance at Section 2(m) of the 2013 Act shows that the term “respondent” brings within its fold “a person”, thereby including persons of all genders.
  2. There is nothing in Section 9 of the 2013 Act (on filing a complaint of sexual harassment) to preclude a same-gender complaint under the Act.
  3. Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same-gender marriages may be legalized.
  4. Definition of “sexual harassment” in Section 2(n) cannot be a static concept but has to be interpreted against the back-drop of the social perspective. Sexual harassment, as contemplated in the 2013 Act, thus, has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the 2013 Act.
  5. A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act.
  6. Similarly, if Section 3 (2) is looked into, it is seen that the acts contemplated therein can be perpetrated by the members of any gender, even inter se.

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